United States Court of Appeals

Fifth Circuit



## FILED

July 11, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-70036

JULIUS JEROME MURPHY,

Petitioner-Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court

For the Eastern District of Texas

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

DeMOSS, Circuit Judge:

Petitioner-Appellant Julius Jerome Murphy (“Murphy”) was

convicted of capital murder in Texas and sentenced to death.

Murphy filed a petition f or writ of habeas corpus in the United

States District Court for the Eastern District of Texas pursuant to

28 U.S.C. § 2254. The district court granted summary judgment to

Respondent-Appellee Doug Dretke (the “Director”), in h is role as

Director of the Texas Department of Criminal Justice, Correctional

Institutions Division, on seven of Murphy’s eight claims. The

court denied Murphy’s petition on the one remaining B atson v.

Kentucky

, 476 U.S. 79 (1986), equal protection claim but granted

Murphy a certificate of appealability (“COA”) on that issue. For2

the following reasons, we AFFIRM the district court’s decision to

deny relief.

BACKGROUND

In August 1998 Murphy was convicted and sentenced to death for

the capital offense of murdering Jason Erie during the commission

of a robbery. The Texas Court of Criminal Appeals (“TCCA”)

summarized the facts presented during the guilt phase of Murphy’s

trial as follows:

As the State’s evidence demonstrated, [Murphy] was

in a car riding with friends around Texarkana during the

early mo rning hours of September 19, 1997. There had

been heavy consumption of alcohol and marijuana

throughout the previous day. The group passed an

individual who appeared to be having car trouble and who

had attempted to elicit their help. At the suggestion of

a friend, [Murphy] agreed to drive back with an aim to

“jack” or rob the stranded driver. After returning to

the stranded motorist, [M urphy] and his friends helped

jump-start the broken-do wn vehicle. The driver, Jason

Erie, provided a small reward to [Murphy] and his friends

for their help and returned to his car. [Murphy] then

stepped from his vehicle, and, armed with a gun, demanded

Erie’s wallet. Initially, Erie protested and refused to

hand over his property. As he finally began to comply,

[Murphy] fired a s ingle shot from close range into the

victim’s forehead and retrieved the stolen wallet from

the spot it had fallen. It was later discovered along a

nearby road where [Murphy] told investigators it had been

discarded. Erie was alive when rescue workers arrived,

but died a short time later.

[Murphy] and his friends fled through Arkansas, to

Tennesse e, and finally ended up in Arlington, Texas,

where they were a pprehended by police. [Murphy’s]

girlfriend, Christina Davis, who was with [Murphy]

throughout the duration of these events, testified that

she had fought with [Murphy] on the day prior to the

murder in which he struck her several times. She also

explained to the jury how she and [Murphy] had fought the

day they were arrested and how [Murphy] continued to hit

he r and threatened to shoot her in the leg to keep her

from leaving.1 We note that Murphy argued his Batson claim on direct appeal,

but not on state habeas. To meet exhaustion under § 2254(b)(1)(A),

a petitioner must present his claim to the highest state court.

See Martinez v. Johnson

, 255 F.3d 229, 238-39 (5th Cir. 2001). On

his direct appeal, Murphy only discussed three of the five AfricanAmerican venirepersons peremptorily st ruck by the State – Bobbie

Gladney (“Gladney”), Deliyamekia Johnson (“Johnson”), and Donna

Cellers (“Celle rs”). Although the magistrate judge and the

district court used, and the parties frequently use, the spelling

“Ce llars,” the state court record indicates that this

venireperson’s name is spelled “Cellers.” We use “Cellers.”

3 Murphy v. State , No. 73,194, slip op. at 2-3 (Tex. Crim. App. May

24, 2000) (unpublished). Murphy, an African American, was

convicted and sentenced by an all-Caucasian jury. Of the six

potential African-American jurors who were questioned for v oir

dire

, five were peremptorily struck by the Bowie County District

Attorney (the “State”). One was accepted by the State but

peremptorily struck by the defense. The defense objected to the

State’s striking of the African-American venirepersons; the trial

court held a Batson hearing. Although the trial court ruled that

Murphy had failed to make a prima facie showing of discrimination

as to his Batson objections, it nonetheless required the State to

offer reasons for the exercise of its challenges. Alternatively,

the trial court ruled that the State’s reasons were valid and raceneutral. The trial court thus overruled Murphy’s B atson

objections.

On direct appeal, the TCCA affirmed Murphy ’s conviction and

sentence; Murphy did not seek certiorari review in the Supreme

Court of the United States. Murphy filed a state application for

writ of habeas corpus in the trial court in October 2000. 1 The

trial court subsequently entered findings of fact and conclusions

of law recommending Murphy’s application be denied. In April 20022 On federal habeas, Murphy asserted his Batson claim as to all

five African-American venirepersons st r uck by the State, also

including Greaker Robinson (“Robinson”) and Jimmy Brewer

(“Brewer”). While the Director argued that Murphy’s claims were

une xhausted as to these two venirepersons, the MJ addressed all

five struck venireperso ns; and the district court stated it

believed considering the entire record a s to all five was

appropriate when deciding whether the trial court’s determination

that the State used its peremptor y challenges in a

nondiscriminatory manner was reasonable. The Director has not

reasserted lack of exhaustion on appeal, and Murphy tightly focuses

his arguments here on the striking of Gladney and Cellers. With

that in mind, we simply note that we, like the MJ and the district

court, do not limit our consideration of the record

, in orde r to

better determine reasonableness of the state cour t’s decision to

overrule Murphy’s Batson objection. B ut see, e.g., Tigner v.

Cockrell

, 264 F.3d 521, 526 & n.3 (5th Cir. 2001) (choosing instead

to sua sponte refuse to consider the constitutional portion of the

petitioner’s cha llenge to admitted expert testimony, even though

the district court had considered the argument).

4 the TCCA adopted the trial court’s findings and conclusions and

denied Murphy habeas corpus relief.

In February 2003 Murphy filed the instant petition for writ of

habeas corpus in district court. In June 2003 the Director moved

for summary judgment. An evidentiary hearing took place before the

magistrate judge (“MJ”) in June 2004 on whether the state court’s

determination that the trial court did not abuse its discretion in

finding that the reasons offered by the prosecution for

peremptorily challenging African-American jurors were race-neutral

was unreasonable. The Director presented the original prosecutor,

Al Smith (“A. Smith”), as a witness; Murphy presented trial

counsel, Craig Henry (“Henry”), as a witness. The MJ then filed

her report and recommendations, recommending that the court grant

the Director summary judgment as to all of Murphy’s eight claims. 2

Murphy timely filed objections. After de novo review of the MJ’s5

report and recommendations, in August 2004 the district court

agreed with the summary judgment recommendation as to seven of

Murphy’s eight claims but did not accept such recommendation as to

the Batson claim on which the MJ had held the evidentiary hearing.

Instead, the district court accepted the MJ’s findings on that

Batson claim and denied relief. The district court thus agreed

with the MJ’s determination that the differences in the questions

asked of African-American versus non-African-American venirepersons

during voir dire could be explained by reasons other than a desire

to exclude potential jurors because of their race; that non-African

-American venireperson Ladonna Smith (“L. Smith”) was not similarly

situated to African-American venireperson Cellers because the

evidence showed Cellers had been convicted of a felony while L.

Smith had only been arrested for an unknown nonfelony offense; and

that the state court’s rejection of the Batson claim because L.

Smith and Cellers were not similarly situated was not unreasonable

because the evidence did not show L. Smith had ever been convicted

and her lone arrest was 20 years prior to Murphy’s trial. Murphy

filed a notice of appeal from the district court’s judgment. In

September 2004 the district court denied Murphy a COA as to the

seven issues it granted the Di rector summary judgment, but it

agreed to issue a COA as to Murphy’s Batson claim.

DISCUSSION

Murphy filed his Section 2254 petition for a writ of habeas

corpus after the effective date of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). In a habeas corpus appeal,

this Court reviews the district court’s findings of fact for clear

error and its conclusions of law de novo

, applying the same

standards to the state court’s decision as did the district court.6

Busby v. Dretke

, 359 F.3d 708, 713 (5th Cir. 2004) (citation

omitted).

Under AEDPA, this Court may not grant relief on a claim the

state court has adjudicated on the merits “unless the adjudication

of the claim

. . . resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States; or . . . resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)

& (2). “A state court’s decision is deemed ‘contrary to’ clearly

established federal law if it relies on legal rules that directly

conflict with prior holdings of the Supreme Court or if it reaches

a differen t conclusion than the Supreme Court on materially

indistinguishable facts.” B usby

, 359 F.3d at 713 (citing Williams

v. Taylor

, 529 U.S. 362, 405-06 (2000)). “A state court’s decision

constitutes an unreasonable application of clearly established

federal la w if it is objectively unreasonable.” P ondexter v.

Dretke

, 346 F.3d 142, 146 (5th Cir. 2003) (citing Williams

, 529

U.S. at 409). “In order for a federal court to find a state

court's application of [Supreme Court] precedent ‘unreasonable,’

the state court’s decision must have been more than incorrect or

erroneous.” W i ggins v. Smith , 539 U.S. 510, 520 (2003). We

presume the state court’s findings of fact are correct, and the

petitioner bears the burden of rebutting this presumption by clear

and convincing evidence. 28 U.S.C. § 2254(e)(1).

Whether the state court’s decision was contrary to, or involved an

unreasonable application of, clearly established federal law.

Batson introduced a three-step evidentiary framework for7

evaluating claims of racial discrimination in jury selection. 476

U.S. at 96-98. First, the defendant must make a p rima facie

showing that the State has exercised peremptory challenges on the

basis of race. I d. at 93-94, 96-97. Second, if the requisite

showing is made, the burden shifts to the State to produce a raceneutral explanation for striking the venireperson at issue and thus

rebut the defendant’s prima facie case. I d. at 94, 97-98. “Unless

a discriminatory intent is inherent in the [State]’s explanation,

the reason offered will be deemed race neutral.” H ernandez v. New

York

, 500 U.S. 352, 360 (1991). Finally, under the third step, the

trial c ourt must determine whether the defendant has carried his

ultimate burden of proving purposeful discrimination. B atson

, 476

U.S. at 94 & n.18, 98. A state trial court’s finding of the

absence of discriminatory intent is “a pure issue of fact” that is

accorded great deference and will not be overturned unless clearly

erroneous. Hernandez , 500 U.S. at 364-65. Our role on appeal is

to “determine whether the trial court’s determination of the

prosecu tor’s neutrality with respect to race was objectively

unreasonable and has been rebutted by clear and convincing evidence

to the contrary.” M iller-El v. Cockrell

, 537 U.S. 322, 341 (2003).

The findings and conclusions of the trial court and adopted by

the TCCA relevant to the instant B atson issue include the

following:

[Murphy]

. . . argues those reasons relied on by the

State to exercise its peremptory challenges against

minority venire members were, in fact, pretextual in

nature and were used to mask discriminatory intent. The

three struck venire members of whom [Murphy] complains on

this appeal are set out as follows accompanie d by the

reasons prosecutors felt a peremptory challenge was

appropriate and what atte mpts were made by defense

counsel to show the reasons were pretextual:8 (1) Venire member Gladney

– Prosecutors felt he was

predisposed to not impose the death penalty, wh ich he

felt was used too often. Gladney indicated he believed

there should be “a medicine to change people who commit

these kinds of crimes.” He expressed a belief that there

would have to be no doubt in his mind before deciding the

death penalty was appropriate. He had children the same

age as [Murphy, who was 19 at the time of his trial]. He

s howed up for voir dire wearing a t-shirt and c hewing

gum, indicating, to prosecutors, a lack of respect for or

recognition of, authori ty. Venire member Gladney also

felt that Karla Faye Tucker (a recent prisoner of death

row) should not have been executed, that the term

“society” did not include prison, and that a person

became less violent with age. Finally, prosecutors say

they exercised a strike because of venire member

Gladney’s beliefs concerning law enforcement and the

criminal justice system.

In response, the defense atte mpted to engage in a

comparative analysis to demonstrate that white venire

members were not struck despite the fact they, too, were

chewing gum or expressed a belief that there must be no

doubt before a punishment of d eath is imposed.

Additionally, counsel for [Murphy] attempted to

demonstrate that the State engaged in disparate

questioning of minority and Caucasian venire members in

order to unfairly exclude those minority members.

(2) Venire member Johnson

– She expressed an ongoing

concern that jury service would unduly interfere with her

attempts to attend nursing scho ol. Also, she had

originally indicated on the juror questionnaire that,

while the death penalty may be appropriate in some cases,

she could not personally return a verdict that assessed

the death penalty. Although this response was later

changed, the prosecutor remained unsatisfied Johnson

would be willing to answer the special issues so that the

punishment would be death. Prosecutors felt venire

member Johnson’s religious beliefs would interfere with

her ability to render a verdict, and they were concerned

abou t a comment she made that her decision might be

affected by the fact that she and [Murphy] are the same

age. She also stated that, in order to find [Murphy]

g uilty, the other parties to the murder would h ave to

testify. Finally, prosecutors expressed the subjective

belief that venire member Johnson was not steadfast in

her beliefs and was the type of person who would try to

“accommodate” whomever she was talking with at the time.3 Examination of the Batson h earing transcript reveals that

this reference should be to Cellers, not Johnson.

4 The record indicates that a jury was empaneled before venire

member Smith could be individually questioned by the involved

parties.

9

Despite the oppor tunity to do so, counsel for

[Murphy] made no effort to refu te or rebut the State’s

reasons for striking this venire member.

(3) Venire member Cell ers – Despite indicating on

her questionnaire that she had never been arrested,

prosecutors discovered that venire member Cellers had at

least two prior arrests. There were indications she had

been convicted of theft, which she denied un til

confronted. She also had been arrested for forgery, for

which she provided an explanation that prosecutors said

they found “incredibl e.” Venire member Cellers also

admitted she had a s ister who had experienced previous

confrontations with police.

Counsel for [Murphy] argued that prosecutors engaged

in disparate questioning of venire member Johnson [sic] 3

because the only inquiries made were of her past criminal

background. This occurred despite the fact that a white

venire member, Ladonna Smith, also had a prior criminal

history, but the State never questioned her or inquired

about it. 4

. . .

After reviewing the available record, we can discern

no abuse of discretion behind the trial court’s decision

to overrule [Murphy]’s Batson objections . The trial

court could have reasonably concluded the State’s raceneutral explanations were valid, and the peremptory

strikes were not racially motivated.

Murphy

, No. 73,194, slip op. at 21-23, 24 (first footnote added and

second footnote in original).

The district court accepted the fol lowing findings from the

MJ’s report and recommendations:

The Court first notes that the reasons given by the10

prosecution for peremptorily excusing the five AfricanAmerican venirepersons were race-neutral. Robinson

stated that her service on the jury could cause a family

conflict, because one of her c hildren was friends with

the defendant, while another child was friends with the

victim. In her questionnaire, Cellars denied that she

had been arrested or convicted of any criminal offenses.

Under questioning, she admitted being both arrested and

convicted, within the past ten years, of shoplifting and

of cashing a stolen check, then claimed that she was in

fact innocent and gave an unlikely explanation. Johnson

gave inconsistent answers; the prosecution attempted to

challenge her for cause on two occasions, only to be

interrupted by the trial court, which rehabilitated her.

Both Brewer and Gladney consistently confused “beyond a

rea s onable doubt” with “no doubt.” Further, Brewer

a ppeared not to believe in, or not to understan d, the

concept of parole, and Gladney was personally opposed to

the death penalty.

To establish pretext, Murphy attempted to show that

similarly situated white venirepersons were treated

differently. He pointed out that the prosecution failed

to use one of its peremptory challenges on [Cora] Elder

[(“Elder”)], a non-African-American, despite her also

responding that she would have to be “without a doubt” of

the defendant’s guilt in order to sentence him to death.

However, a close examination of the v oir dire reve als

that, unlike Brewer and Gladney, Elder quickly backed off

from that position under questioning. Accordingly, this

Court finds that Elder was not similarly s ituated to

Brewer and Gladney. Murphy also pointed out that a non

African-American venireperson named LaDonna Smith had,

like African-American venireperson Cellars, been arrested

an d denied this fact on her questionnaire, but, unlike

venireperson Cellars, the prosecution never questioned

h er on this point. The trial court denied Murphy’s

challenge as to venireperson Smith without explanation,

and without requiring the prosecutor to respond.

While the prosecution’s reasons for peremptorily

challenging venireperson Cellars were valid, its failure

to ask similar questions of venireperson LaDonna Smith,

who appeared similarly situated, do[es] raise an

inference of pretext. Since a finding of pretext as to

a single juror requires that a conviction be vacated, see

J.E.B. v. Alabama ex rel. T.B. , 511 U.S. 127, 136 n. 13

(1994), this Court held an evidentiary hearing in order11

to determ ine why juror Smith was not also questioned

about her criminal history.

Trial prosecutor Al Smith test ified that to him,

convictions were more significant than arrests, and

recent arrests were more significant than older ones. He

testified that venireperson Smith’s criminal history

consisted of only an arrest, not a conviction; that the

arrest was over 20 years old, and that the notation of

the crime for which she was arrested, “ASC,” was not a

crime that he even recognized, but in any event, it did

not appear to be a felony. He also testified that

because venireperson Smith was one of the last

venirepersons questioned, she was not likely to be called

to serve and he was tired at the time he was questioning

her, so he just decided to hurry up at (sic) get through

her voir dire without asking her about t he arrest.

Finally, he testified that he probably would have

peremptorily challenged her on the basis of the false

answer about her arrest if she did become eligible for

the petit jury.

Prosecutor Smith’s explanation is not without

problems. Because he did not know the crime for which

venireperson Smith was arrested, the prudent course would

have been simply to ask her, rather than to peremptorily

challenge her. His claim that he was trying to hurry

through the voir dire because she was near the end of the

pool is belied by the fact that he took almost three

times as much time with Smith as he did with Cellars.

Notwithstanding these discrepancies, that

ven ireperson Smith’s arrest did not result in a

conviction and was more than twenty years old establishes

tha t she was not similarly situated with venireperson

Cellars, so the difference in the questioning they were

subjected to cannot be said to have resulted from no

other reason besides race. The Court, therefore, finds

that the State’s rejection of Murphy’s Batson challenge

was not unreasonable.

Murphy v. Dretke

, No. 5:02cv086, slip op. at 15-16 (E.D. Tex. Aug.

20, 2004) (unpublished). The district court noted that “[i]n

reviewing the record, the Court did not find any examples of

disparate questioning other than those set forth in specific detail12

by the magistrate judge in her findings.” I d. at 16. The district

court agreed that the differences in the questions could be

explained by reasons other than the desire to exclude venirepersons

because of their race. I d. In response to Murphy’s objection that

the MJ erred by not finding Cellers and L. Smith similarly

situa ted, the district court considered what evidence was

introduced at the hearing and noted that nothing indicated that L.

Smi th was convicted or that the term “ASC” referred to a felony

offense. Id. at 17. Moreover, the district court, like the MJ,

could not say that the trial court’s rejection of Murphy’s Batson

claim was unreasonable because the facts that L. Smith was not

convicted and that her arrest occurred 20 years be fore Murphy’s

trial “render[ed] her situation sufficiently distinguishable from

venireperson Cellars.” Id.

Murphy ar gues the trial court’s B atson adjudication and the

district court’s evaluation of its further evidentiary hearing and

subsequent findings against him resulted in a decision that was

unreasonable in ligh t of the evidence presented and contrary to

clearly established federal law as determined by the Supreme Court.

Murphy asserts that through examination of the trial record and the

evidentiary hearing, it can be concluded that the State did not ask

the same questi ons of African-American venirepersons compared to

the non-African-American venirepersons and that the questions asked

of the African-American venirepersons were designed to elicit

d isqualifying information. Murphy argues that the record shows

that the State dev iated from its “script” used to question

prospective jurors during its questioning of African-American

venirepersons.

As to Gladney, Murphy asserts that the defense noted for the13

record that the State did not object to one prospective Caucasian

juror, John Smith (“J. Smith”), who also showed up chewing gum, or

to another prospective Caucasian juror, Elder , who had a similar

definition of “beyond a reasonable doubt” as Gladney. Murphy cites

Emerson v. State , 820 S.W.2d 802, 804 (Tex. Crim. App. 1991), for

the proposition that a neutral explanation for a peremptory strike

against a member of a protected group is suspect when the State did

not use an unexhausted peremptory against a similar juror who was

not a member of that group. Moreover, Murphy contends the defense

stressed at the Batson hearing that disparate questioning had been

used on Gladney. S ee Keeton v. State

, 749 S.W.2d 861, 8 66 (Tex.

Crim. App. 1988) (noting d isparate questioning can evidence

pretext).

Murphy contends the evidentiary hearing was subject t o the

risks of distortion and imprecision from the passage of time

because it took pl ace years after the actual v oir dire

. Murphy

also argues that the MJ and district court incorrectly determined

that L. Smith was not similarly situated to Cellers and that such

disparate questioning was related to race-neutral reasons. Murphy

maintains prosecutor A. Smith’s explanation for peremptorily

challenging Cellers is flawed because A. Smith was merely

commenting on unknown factors to the court, such as that “A.S.C.”

was not known by him to be a felony. Murphy stresses he should not

be held to a search that did not explain any conviction of L. Smith

years after his case was tried, when a search at the time of voir

dire might have produced evidence that L. Smith was convicted and

what crime “A.S.C.” represented. Without any information about

whether L. Smith was convicted and what “A.S.C.” stood for, Murphy

argues prosecutor A. Smith’s explanation that recent arrests were14

more significant than older ones is not logical. Murphy also

points to Henry’s testim o ny that he recalled Caucasian

venirepersons being told about the definitions and circumstances of

capital murder and being asked about issues of the case, while the

African-American venirepersons were asked about reasonable doubt

and their criminal background. Henry also stated that most African

Am ericans in Bowie County were Southern Baptists and had a

different understanding of reasonable doubt, which w as a method

that the State co uld use to disqualify African-American

venirepersons.

The Director responds that Murphy’s disparate questioning

claims lack merit. The Director argues that the record does not

support Murphy’s contention that the State disparately questioned

African-American venirepersons or that the stated reasons for the

strikes at the Batson hearing were pretextual. While the Director

acknowledges that the peremptory s triking of five out of six

African-American venirepersons does appear to be “suspect,” he

emphasizes that Murphy has failed to prove his claims of

discriminat ion before two factfinding courts and that the State

accepted the sixth African-American venireperson, who was then

struck by the defense.

The Director argues that the district court did not err in

concl uding that the state court’s decision to deny Murphy relief

was re asonable. First, the Director notes that Murphy provides

very little record evidence to support his conclusory claims. The

Director ch allenges Murphy’s citation in his brief to the entire

voir dire record and thus contends Murphy has not met Rule 2(c) of

the Rules Governing Section 2254 Cases in the United States

District Courts, which requires a petitioner to plead facts in15

support of his claims. See, e.g., Koch v. Puckett , 907 F.2d 524,

530 (5th Cir. 1990) (holding petitioner’s conclusory allegations

failed to establish valid ineffective assistance of counsel claim);

Ross v. Estelle

, 694 F.2d 1008, 1012 (5th Cir. 1983) (reemphasizing

that “mere conclusory allegations do not raise a constit utional

issue in a habeas proceeding”).

T he Director argues the record instead demonstrates that

potential jurors were treated the same, regardless of race. The

Director asserts that although the State did immediately question

two of the three African-Amer ican venirepersons it struck due to

their expressed personal opposition to the death penalty

– Gladney

and Johnson

– the record d emonstrates that the State likewise

immediately questioned a Caucasian venireperson, Barbara

Whittington, about her views on the death penalty and ulti mately

struck her based on those views. The Director maintains that the

other African-American venireperson struck due to her death penalty

views, R obinson, was not immediately questioned on the death

penalty because her questio nnaire, in addition to indicating a

reluctance or hesitancy to impose the death pen alty, indicated a

stronger family conflict concern in the State’s mind

– the fact

that one of Robinson’s sons was “good friends” with Murphy, and

another son knew the victim. The State eventually questioned

Robinson about her questionnaire answer on the death penalty, where

she had indicated she could not personally assess it, and decided

to strike her based on such views. The Director argues this

corroborates prosecutor A. Smith’s assertion that he used the voir

dire questionnaires to tailor his examination of potential jurors.

As to Gladney, the Director responds to Murphy’s pretext

arguments by noting that while Caucasian venireperson J. Smith was16

also chewing gun, this passing similarity of an affection for gum

hardly impeaches the State’s motivations regarding Gladney. Unlike

G ladney, J. Smith showed himself to be an extremely strong

potential juror for the State. In particular, J. Smith stated he

favored the death penalty and perceived the job of criminal defense

attorneys as “finding loopholes.” The Director notes the defense

excused J. Smith. The Director also argues that examination of the

record reveals that unlike Gladney, who insisted he would only

impose the death penalty if guilt had been shown with “absolutely

no doubt,” Elder merely misspoke as to the “beyond a reasonable

doubt” standard. The Director notes Elder was a stronger potential

State juror because she had previously been a victim of a violent

crime, had friends in law enforcement, and remarked that the death

penalty should be an option whenever someone intentionally takes a

life.

As to Brewer, the Director asserts that Mur phy has never

argued a specific pattern of disparate questioning regarding him.

Although the Director agrees with Murphy that Brewer was questioned

as to the burden of proof, the Director notes that Murphy has never

contended that there was a similarly situ ated Caucasian

venireperson who was not ide ntically questioned. The Director

argues that there was ample reason for the striking of pro-defense

Brewer; he expressed clear views in favor of the defense and

conveyed his belief that capital punishment should only apply when

there is “no doubt” of a person’s guilt and t he person admits to

committing the crime. Moreover, the Director notes Brewer also

would req uire the State to prove the future dangerousness issue

beyond “any or no doubt” – Brewer also suggested this issue could

never be answered because no one could accurately predict the

future.17

F inally, the Director contends Murphy’s arguments that the

State’s stated reasons at the Batson hearing as to Cellers were

pretextual lack merit. The Director argues that any alleged

disparate treatment between venirepersons Cellers and L. Smith is

due to the fact that they were not similarly situated. In fact,

the Director emphasizes that though Murphy relies heavily upon the

MJ’s report that notes certain concerns with the State’s given

reasons for the different questioning, Murphy fails to give due

consideration to the MJ’s ultimate determination, with which the

district court agreed, that the state courts were not unreasonable

in finding a lack of purposeful discrimination. According to the

Director, Cellers provided false statements about her c riminal

history in her questionnaire; only when confronted did she admit to

having served probation for theft and de nied responsibility.

Cellers als o belatedly admitted to being arrested for forgery in

1991 and again denied responsibili ty. In contrast, venireperson

S mith’s allegedly omitted criminal history reflects a single

unknown “A.S.C.” arrest notation over 20 years old at the time of

trial. The Director also notes that L. Smith was one of the last

panel members and that the jury was chosen before either side had

to decide whether to accept her as a juror.

The Director f inally notes that aside from the State not

questioning L. Smith about her criminal history, a similar pattern

of questioning was followed as with other venirepersons: Smith was

first questioned about her views on capital punishment,

specifically a reference to her statement that she would hate to

make that decision, then was questioned about her beliefs regarding

the minimum sentence for capital murder. Moreover, prosecutor A.

Smith testified he probably would have struck venireperson L.

Smith. While the Director allows that the MJ did find certain18

discrepancies in prosecutor Smith’s explanations for the different

questioning, the Director insists that the MJ correctly assessed,

a fter an evidentiary hearing

– and the district court cor rectly

agre ed – that pretext was not shown because Cellers and L. Smith

were sufficiently distinguishable such that the different

questioning did not result from any racially motivated reason.

We find the Director’s arguments here to be persuasive. While

at first and limited glance the stark numbers presented by Murphy

appear to be compelling (five of six African-American venirepersons

were peremptorily struck by the State), that cannot signal the end

of our inquiry. Based on our careful review of the record, and

under the requisite AEDPA deference, we cannot say that the

district court clearly erred in its fac tual findings that the

State’s reasons for striking the African-American venirepersons at

issue were valid and not racially motivated or that the district

court erred in its legal conclusion that Murphy had not proven his

Batson claim.

Here, Murphy did not rebut the state court’s factual findings

with clear and convincing evidence; Murphy did not show that the

State’s individualized reasons for peremptorily striking each

African-American venireperson at issue were actually a pretext for

racial discrimination or that any alleged disparate questioning did

not result from reasons other than race. While we note that the MJ

revealed certain inconsistencies in prosecutor A. Smith’s testimony

regarding the disparate questioning of venirepersons Cellers and L.

Smith durin g the evidentiary hearing, we agree with the Director

that Murphy has not met his burden to prove that discrimination was

inherent in the State’s explanations for striking each AfricanAmerican venireperson at issue. S ee Hernandez

, 500 U.S. at 359.

Therefore, we, like the state courts and the federal court below,19

accept that the reasons offered by the State were valid and race

neutral. See id. We find nothing in this record indicating that

the trial cour t’s determination of the State’s neutrality with

respect to race was objectively unreaso nable and nothing which

rebutted such determination with clear and convin cing evidence.

See M iller-El

, 537 U.S. at 341. We thus agree with the district

court and find that the state court’s conclusion that the trial

court did not abuse its discretion in determining that Murphy had

not met his burden to show discrimination under Batson and that

such determination was not contrary to, and did not involve an

unreasonable application of, clearly established federal law.

W e are aware that we file this opinion less than one month

after the Supreme Court handed down its decision in Miller-El v.

Dretke

, 545 U.S.

___, 2005 WL 1383365 (Jun. 13, 2005) ( Miller-El

II ), in which a six-justice majority of the Supreme Court reversed

a decision of another panel of this Court

– which had affirmed both

the state court’s and federal district court’s determination that

the petitioner Miller-El should not receive relief on his B atson

claim. In doing so, the Court considered the type and quantum of

record evidence required to demonstrate a B atson v iolation. The

Court did not announce any new elements or criteria for determining

a Batson claim, but rather simply made a final factual and

evidentiary determination of that particular petitioner’s Batson

claim pursuant to the “demanding but not insatiable” standard set

forth in 28 U.S.C. § 2254(d)(2) and (e)(1). M iller-El II

, 2005 WL

1383365, at *8.

Here, we have thoroughly combed the record of the voir dire

conducted in Murphy’s state court capital murder t rial; and our

detailed “side-by-side co mparisons of black venire panelists who20

were struck and white panelists allowed to serve” do not indicate

that any differences in questioning or treat ment resulted from

pretextual racial bias. See Miller-El II , 2005 WL 1383365, at *8

(noting the evidentiary strength of such close comparisons).

Moreover, there is neither evidence in this record of: (i) any,

much less multiple, jury shuffles occurring in the state trial

court which resulted in the increasingly lower statistical presence

of African Americans within the jury venire; nor (ii) a 20-yearold, or indeed any, manual from the State District Attorney and

other testimonial evidence suggesting the historic use of

peremptory strikes against African-American venirepersons during

jury sel ection, both of which were decisive factors in M iller-El

II

. Id. at *13, 17-18.

We recognize that Miller-E l II may be the first ring of the

death knell for peremptory challenges, id . at *21-22 (Breyer, J.,

concurring), and that the Supreme Court may well grant certiorari

in this case to finally bury the concept of peremptory challenges.

We see nothing in Miller-El II , however, that compels us to reach

that conclusion here in Murphy and leave it to the Supreme Court to

say whether Miller-El II will extend that far.

CONCLUSION

Having carefully reviewed the record of this case and the

parties’ respective briefing, for the reasons set forth above, we

AFFIRM the judgment of the district court.

AFFIRMED.